2009 (11) TMI 851

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....e learned single judge has dismissed the writ petition filed by the appellant herein. The appellant is a manufacturer of potato chips which are sold under the brand names "Lays" and "Uncle Chips". They had filed the writ petition seeking two-fold orders. One was that the clarification dated March 29, 2007 issued by the first respondent-Commissioner of Commercial Taxes, Tamil Nadu, holding that branded chips are taxable at 12.5 per cent under Part C of the First Schedule to the Tamil Nadu Value Added Tax Act, 2006 be quashed and set aside. The second prayer was that the first respondent be directed to classify "potato chips" sold under a brand name as taxable under entry 107 of Part B of the First Schedule to the Tamil Nadu Value Added Ta....

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....offees and savouries like chips and popcorn sold without a brand name other than those specified in the Fourth Schedule." The short submission of the learned counsel for the appellant is that when there is a specific entry, one has to follow only that and one is not expected to go to the residuary item.   As far as this submission is concerned, there have been a number of judgments on this point. For a ready reference, one may refer to the judgment of the apex court in Bharat Forge & Press Industries (P.) Ltd. v. Collector of Central Excise reported in [1992] 84 STC 414; [1990] 45 ELT 525, where the apex court has clearly held in paragraph 3 that under a residuary entry, only such goods are covered which cannot be brought under t....

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....d vegetables. According to the learned single judge, processed vegetables will not include vegetables fried in oil. This finding does not stand to reason. The term "processing" would take within its ambit any such process which would include frying, apart from cutting of the potatoes. Mr. Haja Naziruddin, learned Special Government Pleader (Taxes), on the other hand, submitted that the better course that can be adopted is that the appellants could go in for the alternative remedy of assessment and thereafter, if they are aggrieved, they may take further steps. He has referred to the judgment of a Division Bench of the Punjab and Haryana High Court in the case of the present appellants reported in Pepsico India Holdings (P.) Ltd. v. State....